ATLANTA PUBLIC SCHOOLS v. M. M., a Former Student at Benjamin E. Mays High School. (2026)

M. M., a former student at Benjamin E. Mays High School, sued Atlanta Public Schools (“APS”), the Atlanta Board of Education (the “Board”), and Carl Sledge in his official capacity as an APS employee (collectively, “APS defendants”). The complaint was also filed against Sledge in his individual capacity. The APS defendants filed a motion to dismiss M. M.’s claims against them based upon sovereign immunity. We granted APS's application for an interlocutory appeal ¹ from the trial court's denial of that motion as to APS and Sledge in his official capacity.² For the following reasons, we reverse.

A trial court's ruling on a motion to dismiss based on sovereign immunity is subject to de novo review. Raw Props., Inc. v. Lawson, 335 Ga. App. 802, 802, 783 S.E.2d 161 (2016). “Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” Id. (citation and punctuation omitted.)

So viewed, M. M.’s complaint alleges that Sledge was a coach for the Benjamin E. Mays high school football team in 2023, and M. M. was one of his football players. It further alleges that on August 26, 2023, “Sledge publicly struck M. M. in his stomach in front of the crowd” during a high school football game, which caused M. M. to suffer physical and mental injuries. In pertinent part, M. M.’s complaint seeks to hold the APS defendants vicariously liable for Sledge's acts and contends that they were negligent in employing and supervising Sledge without first ensuring that he was qualified and certified to serve as a football coach under applicable Georgia High School Association (“GHSA”) guidelines. The complaint also raised a claim for breach of contract.

The APS defendants moved to dismiss under OCGA § 9-11-12 (b) (1), arguing that APS's sovereign immunity deprived the trial court of subject matter jurisdiction over these claims. They also argued that M. M.’s claims against the Board were invalid because the Board is not a legal entity that can be sued. In response, M. M. argued that APS's sovereign immunity had been waived. The trial court denied the motion to dismiss on the grounds that APS's sovereign immunity had been waived under the ex contractu clause of the Georgia Constitution and OCGA § 36-33-1 (a) (the “November 21st Order”).

After APS moved for a certificate of immediate review from the November 21st, order, the trial court entered an amended order. In this order, the trial court “supersede[d] and vacate[d]” the November 21st order in its entirety, “including all reasons provided by the [c]ourt for its denial.” The trial court then granted the motion to dismiss as to the Board, but denied it as to APS and Sledge in his official capacity. This time, the trial court held that sovereign immunity against APS had been waived by the official immunity provision of the Georgia Constitution,³ because APS “failed to perform and/or negligently performed ministerial functions resulting in injury” to M. M. The trial court further reasoned that because APS had “concede[d] that a claim against a governmental official in his official capacity is really a claim against the government entity he works for,” the claim against APS could proceed. We granted APS's certificate of immediate review from that order.

1. APS argues that the trial court erred by finding that its sovereign immunity was waived under the official immunity provision of the Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec. II, Par IX (d). We agree.

The Georgia Constitution grants sovereign immunity to “the state and all of its departments and agencies, including school districts.” Griffith v. Robinson, 366 Ga. App. 869, 870 (2), 884 S.E.2d 532 (2023) (citation and punctuation omitted.). See also Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); Wellborn v. DeKalb County School Dist., 227 Ga. App. 377, 379 (4), 489 S.E.2d 345 (1997) (A public school district “is a political subdivision of the State of Georgia, and is vested with sovereign immunity unless such immunity is waived in accordance with [the Georgia Constitution].”) (punctuation omitted). Thus, a public school district is immune from suit absent “an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). See also Crisp County School System v. Brown, 226 Ga. App. 800 (1), 487 S.E.2d 512 (1997). If sovereign immunity applies, the trial court lacks subject matter jurisdiction over the claim. Evans v. Gwinnett County Pub. Schools, 337 Ga. App. 690, 694 (1), 788 S.E.2d 577 (2016). Furthermore, (“sovereign immunity is not an affirmative defense ․ that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver.”) Griffith, 366 Ga. App. at 870 (2), 884 S.E.2d 532 (citation and punctuation omitted).

The trial court's amended order held that APS's sovereign immunity was waived under the doctrine of official immunity because the APS defendants “failed to perform required ministerial acts” prior to hiring Sledge. This holding incorrectly conflates the concepts of sovereign immunity and official immunity. “[S]overeign immunity and official immunity are not synonymous, but are separate, related doctrines.” Klingensmith v. Long County, 352 Ga. App. 21, 23 (1), 833 S.E.2d 608 (2019) (citation and punctuation omitted). As noted above, sovereign immunity provides immunity to governmental entities and their employees sued in their official capacities. Gilbert v. Richardson, 264 Ga. 744, 750 (4), 452 S.E.2d 476 (1994).⁴ In contrast, “the doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity.” Klingensmith, 352 Ga. App. at 23 (1), 833 S.E.2d 608 (citation and punctuation omitted; emphasis supplied). See also Const. of 1983, Art. I, Sec. II, Par. IX (d). It is true that the official immunity afforded to individuals employed by the state or its agencies is “waived in cases where ministerial acts were negligently performed or where official acts were performed with malice or an intent to injure.” Klingensmith, 352 Ga. App. at 23 (1), 833 S.E.2d 608 (citation and punctuation omitted.). However, a governmental entity—such as APS—may only be liable for its employee's negligence in performing an official function to the extent the entity has waived sovereign immunity. Id. See also Ratliff v. McDonald, 326 Ga. App. 306, 309 (1), 756 S.E.2d 569 (2014) (official capacity claims based on respondeat superior barred by sovereign immunity); Harper v. Patterson, 270 Ga. App. 437, 437-438 (1) (a), 606 S.E.2d 887 (2004) (sovereign immunity barred suit against a school district despite allegations of malice, ministerial acts, and violations of a public duty, because those allegations concerned official immunity for state employees, which is a different concept than the sovereign immunity of state agencies). Here, M. M. has not shown that there was a waiver of APS's sovereign immunity. Thus, the official immunity provision relied upon by the trial court does not apply to APS. Accordingly, we conclude that the trial court's order denying the APS defendants's motion to dismiss was in error.

The fact that M. M.’s claims against Sledge in his official capacity are effectively claims against APS does not change this analysis. See Campbell v. Goode, 304 Ga. App. 47, 50 (2), 695 S.E.2d 44 (2010) (claim against city police officer in his official capacity is, in reality, a suit against the city and subject to a claim of sovereign immunity). Further, because “no waiver of sovereign immunity occurred in this case ․, [APS] cannot be held liable under the doctrine of respondeat superior for any alleged negligence of [Sledge].” Brown, 226 Ga. App. at 804 (2), 487 S.E.2d 512.

2. M. M. argues that we should affirm the trial court's judgment under the right-for-any-reason rationale ⁵ because OCGA § 36-33-1 waived APS's sovereign immunity to the extent that there is insurance available to pay out judgments against the district. This argument is without merit. By its express terms, OCGA § 36-33-1 applies only to municipal corporations. Athens-Clarke County v. Torres, 246 Ga. App. 215, 216-217 (1), 540 S.E.2d 225 (2000). APS is not a municipal corporation. See e.g., City of Atlanta v. Atlanta Indep. School System, 307 Ga. 877, 838 S.E.2d 834 (2020) (recognizing that the “General Assembly separated APS from the [City of Atlanta's] municipal government by enacting separate charters for the two entities and removing most educational powers and responsibilities from the City government”). See also Bowen v. Telfair County School Dist., 418 F.Supp.3d 1265, 1271-1272 (II) (B) (2) (S. D. Ga. 2019) (County school district did not waive sovereign immunity with respect to student's negligence and intentional tort claims by maintaining liability insurance policy, as statute providing for waiver in limited circumstances where insurance coverage was available applied only to municipal corporations.).

3. We further find no merit in M. M.’s argument that this Court should affirm the trial court's ruling under the right-for-any reason rationale because he established a waiver of sovereign immunity under the ex contractu provision of the Georgia Constitution.⁶

One of the exceptions to the defense of sovereign immunity is for any “action ex contractu for the breach of any written contract now existing or hereafter entered into by the state or its department and agencies.” Ga. Const. 1983, Art. I, Sec. 1, Par. IX (c) (emphasis supplied). See also OCGA § 50-21-1 (a) (“The defense of sovereign immunity is waived as to any action ex contractu for the breach of any written contract ․ entered into by the state, departments and agencies of the state, and state authorities.”). On its face, this waiver of sovereign immunity applies only to breach of contract claims arising out of explicit, written contracts. See Ga. Dept. of Labor v. RTT Assocs., 299 Ga. 78, 81 (1), 786 S.E.2d 840 (2016).

Count IV of M. M.’s amended complaint alleged breach of contract on the grounds that “APS and Sledge had a legal and contractual duty to ensure that all by-laws, rules and procedures, as established by the GHSA and the coaching agreement, were fulfilled and adhered to.” However, neither M. M.’s appellate brief nor his complaint point to an explicit written contract entered into by APS. Instead, M. M.’s complaint appears to argue that an implied contract existed between APS and GHSA based upon GHSA's constitution and bylaws, which provide that “schools within [APS] are required to [follow GHSA by-laws] prior to hiring a community coach.” Accordingly, M. M. has not met his burden of proving the existence of an explicit, written contract that waived APS's sovereign immunity. See Patrick v. Bd. of Regents of the Univ. Sys. of Ga., 358 Ga. App. 546, 548-549, 855 S.E.2d 746 (2021) (acceptance letter, graduate handbook, and student handbook did not constitute a written contract that waived the State's sovereign immunity).

Based upon the above, we reverse the trial court's order denying APS's motion to dismiss based on sovereign immunity.

Judgment reversed.

FOOTNOTES

1.   The trial court's order was entered on November 25, 2024. We note that as of July 1, 2025, “[a]ll judgments, orders, or rulings in civil actions granting or denying or refusing to grant or deny immunity to one or more parties based upon sovereign, municipal, official, qualified, or judicial immunity ․ shall have the right of direct appeal[.]” OCGA § 5-6-34 (a) (15) (2025).

2.   The trial court granted the motion to dismiss as to the Board.

3.   See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d).

4.   Because “any recovery of damages would be paid out of the public purse, county employees sued in their official capacities are entitled to invoke the protection afforded by sovereign immunity.” Bd. of Commrs v. Johnson, 311 Ga. App. 867, 872 (2), 717 S.E.2d 272 (2011).

5.   “Under the ‘right for any reason’ rule, an appellate court will affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied.” City of Gainesville v. Dodd, 275 Ga. 834, 835, 573 S.E.2d 369 (2002).

6.   We note that the trial court explicitly considered this rationale in its original order and then rejected it in its amended order.

Brown, Chief Judge.

Barnes, P. J., and Watkins, J., concur.